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LINAN-FAYE CONSTR. CO. v. HOUSING AUTH. OF CAMDEN

March 4, 1998

LINAN-FAYE CONSTRUCTION CO., INC., Plaintiff,
v.
HOUSING AUTHORITY OF THE CITY OF CAMDEN and AYIREBI ASANTE, Defendants.



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 This matter comes before this Court on cross-motions for summary judgment. This Court has jurisdiction pursuant to 28 U.S.C. § 1332. For the reasons stated below, this Court will enter partial summary judgment in favor of plaintiff Linan-Faye Construction Co., Inc..

 I. BACKGROUND

 The material facts in this case are not in dispute. After a jury trial, plaintiff Linan-Faye Construction Co., Inc. ("plaintiff") obtained an amended judgment ("the judgment") against the Housing Authority of the City of Camden ("HACC") in the amount of $ 1,390.488. After HACC filed a notice of appeal with the Third Circuit Court of Appeals concerning the judgment, the parties reached a settlement agreement. Pursuant to this agreement, HACC's counsel prepared, and plaintiff signed, a document titled "General Release" ("the Release") in which plaintiff states that it releases HACC from "any and all claims pertaining to or arising from [Linan-Faye's] contract with ["HACC"] including those claims set forth in the suit captioned LINAN-FAYE CONSTRUCTION CO., INC. V. HOUSING AUTHORITY OF THE CITY OF CAMDEN, Docket No. 90-4651" and agrees to accept a payment of $ 1,250,000 in lieu of the judgment. The Release provides that the $ 1,250,000 is to be paid in four installments. The first payment is to be $ 450,000, due on or before May 20, 1997. Additional payments of $ 350,000, $ 300,000 and $ 150,000 are to be paid on November 1, 1997, November 1, 1998, and November 1, 1999, respectively. The Release further provides: "TIME IS OF THE ESSENCE FOR THESE DATES." Finally, it states: "[Linan-Faye] agree[s] that [it] will not seek anything further including any other payment from [HACC][.] This release is conditioned upon the receipt of said payments and in the event of failure of same, [Linan-Faye] retain[s] the right to enforce payment of same."

 Plaintiff sent letters to counsel for HACC on March 13, 1997; April 2, 1997; April 11, 1997, May 1, 1997; May 8, 1997; and May 20, 1997, inquiring about the status of the first payment due on or before May 20, 1997. In the May 8 letter, plaintiff warned that it would seek interest in the event the payment was late. On May 20, 1997, plaintiff's counsel wrote: "My client's position is that if the payments are not made in full and on time, then the agreement will have been breached and Linan-Faye is entitled to the full amount of the judgment." (Complaint, Ex. H). On May 23, 1997, plaintiff's counsel stated his client's view that the late payment rendered the judgment due and payable in full, and advised that if payment was not received by May 28, 1997, plaintiff reserved the right to commence execution proceedings on the judgment. (Complaint, Ex. I). On June 6, 1997, still not having received the first payment, plaintiff's counsel advised HACC that HACC was in "plain breach" and that plaintiff would "proceed with the remedies available to them at law." (Complaint, Ex. J). On June 16, 1997, plaintiff's counsel acknowledged receipt of the $ 450,000 payment from HACC in a letter to HACC's counsel, and wrote further:

 
As I indicated to you in our meeting, this check is being accepted on account of the debt, and without prejudice to my client's position that the Release Agreement has been breached by HACC and that the full amount of the judgment is now due.
 
The check shall be deposited, but without prejudice, reserving all rights.

 (Complaint, Ex. K).

 On July 23, 1997, plaintiff instituted the instant suit against HACC and Ayirebi Asante, Acting Executive Director of HACC ("defendants"), alleging that HACC materially breached the settlement agreement when it failed to make its first payment by May 20, 1997, as required by the Release, and seeking a writ of mandamus from this Court directing defendants to pay and satisfy the original judgment with interest, less credit for sums paid and for other relief. On November 1, 1997, HACC paid the second required installment. Plaintiff's counsel wrote to HACC's counsel to acknowledge receipt. He stated further:

 
As I previously indicated to you, and as I advised in acceptance of the first payment, this check is being accepted on account of the debt, and without prejudice to Linan-Faye's contention that the Release Agreement has been breached by HACC and that the full amount of the judgment is now due (less credit for sums received).
 
The check shall be deposited, but without prejudice, reserving all rights.

 (Plaintiff's Brief in Support of Motion for Partial Summary Judgment, Ex. E).

 Now before this Court are the parties' cross-motions for summary judgment concerning whether plaintiff now is entitled to void the Release and to seek -- via writ of mandamus -- ...


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